... As Justice Kagan put it (on page nine of the transcript): “[W]hen exactly [does] the violation occur[] and why [does] it occur[] before the state denies compensation in the inverse condemnation proceeding? . . . Is that because — are you saying that’s because the right to compensation is immediate; in other words, there’s a right to compensation contemporaneous with the taking?”

As we will explain in a forthcoming article on The Remedial Structure of the Takings Clause, this question, as well as the proper scheme for enforcing the Takings Clause generally, was the subject of debate for well over a century before Williamson County. James Kent, a master in chancery in New York who had significant influence on the development of American equitable remedies, discussed the issue in his Commentaries on American Law. “The better opinion,” he wrote, “is, that the compensation, or offer of it, must precede or be concurrent with the seizure and entry upon private property under the authority of the state.” “The government is bound” under the Takings Clause, Kent continued, “to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms; and if the government proceed without taking these steps, their officers and agents may, and ought to be restrained by injunction.” (To our knowledge, neither Kent’s Commentaries, nor the cases discussed below, have been brought to the Court’s attention in the briefing in Knick, nor analyzed in the sizable scholarly literature on Williamson County.)

This post will address how Chancellor Kent’s logic plays out in claims against the federal Government, how it plays out in claims against state officers and municipal governments, and the implications for Knick and other related issues.